Delhi District Court
State vs 1) Vikas @ Kaushal on 10 January, 2012
In the Court of Ms. Kaveri Baweja
Additional Sessions JudgeFTC (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 14/10
Unique ID No. : 02401R1084062008
State versus 1) Vikas @ Kaushal
S/o Sh. Muni Ram
R/o H. No. : 271/1 Gali No. 7
Nehru Nagar, Anand Parbat
Delhi
2) Raj Rani @ Munni
W/o Muni Ram
R/o H. No. 271/1 Gali No. 7
Nehru Nagar, Anand Parbat
Delhi
Case arising out of:
FIR No. : 68/08
Police Station : Anand Parbat
Under Section : 498A/304B/302/34 IPC
Judgment reserved on : 06.1.12
Judgment pronounced on : 10.1.12
JUDGMENT
1. The brief facts of the case as borne out from the chargesheet are that on 15.5.08 DD No. 22A was received at PS Anand Parbat at about 3.30 PM, as per which one Smt. Sudesh aged 22 years wife of Sh. Vikas had been brought dead at Jeevan Mala Hospital, Rohtak Road, Delhi.
2. On receipt of this information, ASI Jora Singh along with Ct. Vijay reached the said hospital and obtained the MLC of Smt. Sudesh (hereinafter referred to as the deceased), as per which doctor had mentioned 'patient found brought dead and ?? strangulation mark over neck more prominent over left side". Upon receipt of the MLC, ASI Jora Singh informed the concerned SDM and the parents of the deceased who were called to the Jeevan Mala Hospital. The SDM recorded the statement of Smt. Kela, mother of deceased and Sh. Naresh, brother of the deceased.
3. Smt. Kela, mother of the deceased alleged that on 13.5.08 she had spoken to the deceased who was calling her brother and asking him to take her with him. She also alleged that Accused Vikas, husband of the deceased used to tell her that she had not brought anything, though several articles including furniture etc. were given by them at the time of their marriage. She also contended that Smt. Sudesh had come to their house about five months ago and had stated that her husband used to tell her that pant and shirt brought by her at the time of marriage are unstitched. Smt. Kela also stated to the SDM that deceased Smt. Sudesh did not use to reveal much to them but her inlaws used to tell her that she does not know how to make roti and double bed given to them was in broken condition, although bed had to be opened up for the reason that staircase leading to the house of the Accused was narrow. The mother of the deceased Smt. Kela also alleged in the said statement made to the concerned SDM, motherin law and husband of the deceased are responsible for her death. The statement of brother of deceased namely Sh. Naresh Kumar was also recorded by the SDM concerned on 15.5.08.
4. The chargesheet further discloses that in the meanwhile Insp. Shiv Kumar (Law and Order) reached at Jeevan Mala Hospital and ASI Jora Singh handed over the statement recorded by the SDM to him. ASI Jora Singh was directed to get the place of occurrence inspected by Crime Team and the case was got registered on the basis of statement of Smt. Kela. During the course of investigation, body of the deceased and the articles recovered from the place of occurrence were seized and the dead body was ordered to be sent to the mortuary of DDU hospital. The photographs of the scene of crime were taken and broken pieces of bangles, bindi, bichua and one hair recovered from the place of occurrence were also seized.
5. IO/Insp. Shiv Kumar also prepared the site plan and arrested Accused Vikas and Rajrani. On 16.5.08, Insp. Shiv Kumar directed ASI Jora Singh to get the postmortem of body of deceased Smt. Sudesh conducted after which postmortem report was obtained. As per the opinion of the examining doctor, the cause of death of Smt. Sudesh was opined to be 'asphyxia due to constructing force over the neck produced by ligature homicidal hanging. All injuries are antemortem in nature and are of same duration. Constricting force over neck was sufficient to kill the person in ordinary course of nature'. Viscera of deceased was also sent to FSL through ASI Jora Singh and after the completion of investigation, chargesheet was submitted before the court.
6. After the committal of the case and after considering the material on record, both the above named Accused persons were charged for offences punishable under Section 498A/304/34 IPC vide order dated 16.12.08, to which they pleaded not guilty and claimed trial. It is, however, pertinent to mention at this juncture that during the course of proceedings, the Prosecution moved an application under Section 216 CrPC praying that additional charge for offence punishable under Section 302/34 IPC be also framed against both the Accused persons. After considering the submissions made by the Defence as well as by the Prosecution, the said application was allowed vide order dated 08.4.11, and besides the aforesaid charges, additional charge for offence 302/34 IPC was framed against both the Accused, to which also they pleaded not guilty and claimed trial. Some witnesses were also recalled pursuant to framing of said additional charge, as is borne out from the record of the case.
7. In order to bring home the guilt of the Accused persons, Prosecution examined sixteen witnesses on record. The Accused persons were examined under Section 313 CrPC wherein they pleaded their innocence while denying the allegations against them and claimed that they are falsely implicated in this case by the police officials in collusion with the complainant. Accused also examined two witnesses in their defence namely DW1 Sh. Kamal Kumar and DW2 Smt. Ram Bhateri. Detailed arguments were advanced by Ld. Defence Counsel who also submitted his written arguments. I have considered the same besides considering the arguments advanced on behalf of State. I have also carefully gone through the evidence on record in the light of the submissions made and the relevant case law cited during the course of arguments.
9. The Prosecution, as aforesaid examined sixteen witnesses to bring home the guilt of the Accused persons. The concerned SDM namely Sh. Vinay Kaushik who recorded the statement of the family members of the deceased was brought into the witness box as PW14. He deposed that on 15.5.08 on receipt of message from SDM Patel Nagar regarding dead body lying at Jeevan Mala Hospital when he contacted ASI Jora Singh a dead body of Sudesh was lying at the aforesaid hospital and had been declared brought dead. He reached at hospital at about 5.45 PM and recorded the statement of Smt. Kela, mother and Sh. Naresh, Brother of the deceased which are Ex. PW3/A and PW1/A respectively. He deposed that he attested the said statements and said statements also bear his signatures. PW14 further deposed that he visited the residence of the deceased at 271/1, Gali No. 7, Nehru Nagar, Anand Parbat, Delhi and inspected the room where the incident had taken place. He deposed that as per ASI Jora Singh the dead body was found hanging from the ceiling fan and the mother and brother of the deceased levelled allegations against the Accused persons and since there was a mark on the left side of the neck of the deceased indicating strangulation, he recommended to the SHO concerned to take action as per law. His recommendation is Ex. PW14/A.
10. PW14 further deposed that on the next day, he requested postmortem on the body of the deceased vide request Ex. PW14/B and also filled up form No. 25.35 (1) (B) which is Ex. PW14/C. He also submitted that before postmortem, the dead body was identified by the father and brother of the deceased.
11. Sh. Naresh, brother of the deceased was examined by the Prosecution as PW1 deposed that the deceased was married to Accused on 19.7.07 and he identified both the Accused as the husband and mother in law of the deceased. He further deposed that in the marriage of Sudesh, they had given dowry as per their capacity. He further stated that Sudesh used to make complaints against the Accused persons that they are harassing her but she did not tell the reason of her harassment by the Accused persons. He further told that she might have told the reason of her harassment by to Accused persons to his mother.
12. The witness was crossexamined by Ld. Public Prosecutor and he admitted that Sudesh used to make complaints against Accused persons stating that they used to taunt her for bringing less dowry and his sister used to ask him as to what type of goods they had given to her but he used to console her sister and used to tell her that he was facing scarcity of money and subsequently after purchasing, he would give her the goods. He further admitted that his sister used to tell that Accused persons used to give entire clothes of the house to wash and used to say since she had not brought goods so she had to do the work. He also stated that a day before the incident, Sudesh had made a telephone call to him stating that 'Bhaiya Jaldi Aa Jao Aur Mujhe Le Jao' and when he asked her what was the matter, she did not disclose anything.
13. In his crossexamination, he also admitted that certain articles including one one pair of ear ring of gold, one pair of jhumka gold, chutki of silver, one chain of silver bearing devi ka locket, one tabeez, one bangle of lak and three bangles of glass of pink colour were recovered in search of dead body and were seized vide memo Ex. PW1/B. He also correctly identified the aforesaid articles when produced before the court.
14. The mother of the deceased Smt. Kela was also examined by the Prosecution as PW3. A careful perusal of her deposition would reveal that witness turned hostile and failed to support the case of the Prosecution.
15. The father of the deceased Sh. Ram Niwas stepped into the witness box as PW4. He stated that in laws of Sudesh were not happy with the dowry given at the time of marriage. He also stated that mother in law of the deceased demanded money for purchasing a plot after sometime of marriage. However, he had arranged only Rs. 10,000/ and when went to give the same to the mother in law of his daughter, she abused him and also gave beatings to his daughter in his presence. PW4 also deposed that on the occasion of Bhaiya Duj, in laws of her daughter were not happy with the gift items sent by him and told his son and daughter in law as to why they had not brought seven metal karva. He also deposed that Accused did not sent his daughter on account of marriage of cousin brother's son and further stated on the occasion of Holi, in laws of the deceased told his son to pay the remaining amount of Rs. 50,000/ as was told to him by his son. In his examination in chief, he further stated that after coming to know about the demise of his daughter, he went to the hospital and received her dead body after postmortem. However, his statement was recorded by the police after 11 ½ months.
16. Apart from the aforesaid witnesses, Prosecution also examined PW16 Dr. Komal Singh who had conducted postmortem on the body of deceased Sudesh. He proved his postmortem report as Ex. PW16/A and deposed that as per his opinion the cause of death was asphyxia due to the constricting force over the neck produced by the ligature homicidal hanging. He also deposed that on 18.7.08 an application was received from IO/Insp. Shiv Kumar seeking opinion about the ligature and his detailed report in this regard is Ex. PW16/B to the effect that sari handed over to him along with application could cause ligature over the neck during the hanging.
17. It was submitted by Ld. Defence Counsel that Prosecution has failed to discharge its onus of proving the allegations against the Accused beyond reasonable doubt. It was submitted that in order to prove the commission of offence punishable under Section 304 B IPC, it was incumbent upon the Prosecution to establish beyond reasonable doubt that there was demand of dowry and that deceased was subjected to cruelty and harassment soon before her death by the Accused persons.
18. He argued that Prosecution has failed to prove that there was any demand for dowry either before marriage, at the time of marriage and even after marriage. In this regard, Ld. Defence Counsel pointed out that PW1 has categorically deposed that they had given dowry as per their capacity implying thereby that there was no demand from the side of the Accused persons. Reliance was also placed on the cross examination of PW3 Smt. Kela, mother of the deceased wherein she had admitted that 'according to my capacity, I had given dowry in the marriage to the Accused persons'.
19. Ld. Defence Counsel also submitted that father of the deceased PW4 testified that his son had told him that Accused persons demanded Rs. 50,000/ for purchasing a house. However, this piece of his statement cannot be termed as 'dowry demand' as said demand was made for the purpose of purchasing a house. Even otherwise, there is nothing in the testimony of PW1 to support the version of PW4 that any such demand for Rs. 50,000/ was made by the Accused persons.
20. It was further contended by the Defence that there is no evidence whatsoever on record to prove that the deceased was subjected to cruelty or harassment soon before her death, as mandatorily required to be proved in case under Section 304 B IPC. Extending his arguments further, Ld. Defence Counsel submitted that there is also no material on record to establish that Accused persons committed offence punishable under Section 498A IPC.
21. As regards the charge under Section 302 IPC, it is contended on behalf of Defence that there is neither any occular nor circumstancial evidence to prove the case of the Prosecution for offence punishable under Section 302 IPC. Admittedly, there is no eye witness nor any evidence which would indicate that Accused persons had committed murder of the deceased. It was further contended that as per statement of PW6 SI Jora Singh and PW15 Insp. Shiv Kumar, the door of the room of the deceased found closed which points out that death of Smt. Sudesh was suicidal and not homicidal. Further, the Accused did not flee away from the place of occurrence which establishes that they are innocent and have not committed the offence in question. He further submitted that Accused persons took the deceased to the hospital and also informed parents of the deceased as per the statement of PW2 Smt. Kela and PW4 Sh. Ram Niwas, which also proves their innocence.
22. He further submitted that there is no evidence on record to show that the case property seized from the place of occurrence was deposited in the malkhana. MHC(M) was not examined in court nor was relevant record of malkhana produced before the court. It is further contended that MLC Ex. 8/A and postmortem report Ex. PW16/A are contradictory to each other as regards injuries allegedly found on the person of deceased. It was submitted that as per MLC Ex. 8/A, Doctor had mentioned only strangulation over the neck more prominent on left side. However, as per postmortem report Ex. PW16/A, eight injuries were found on the body of the deceased. He submits that this clearly implies that either the dead body was tampered with, or injuries were caused when the deceased was brought to the hospital. He further submitted that as per PW14 Ct. Vijay, dead body was under his custody whereas as per DD No. 31A, Ct. Vijay was along with Insp. Shiv Kumar and came to the PS with Accused persons implying thereby that dead body was not in custody of any person, thus the possibility of tampering cannot be ruled out.
23. My attention was drawn to the deposition of PW2 Lalit Kumar and PW15 Insp. Shiv Kumar as to by whom photographs of the scene of crime were taken. Ld. Defence Counsel submitted that at this juncture it is also relevant to peruse the statement of PW 7 who deposed that photographs were taken by private photographer. Even otherwise, photographs in question have not been duly proved on record.
24. Further, argument of the Defence is that no reliance can be placed on articles seized from the place of occurrence i.e pieces of broken bangles, bichua, bindi and one hair, inasmuch as no evidence has been led by the Prosecutio to establish as to whom the said articles belong. Ld. Defence Counsel argued that broken pieces of bangles, bichua and bindi were not identified as that of the deceased by any of the witnesses examined by the Prosecution. Further, the Investigating Agency took no steps to send the hair which was recovered along with broken pieces of bangles to FSL in order to ascertain as to whose hair it was.
25. Ld. Defence Counsel also argued that no reliance can be placed on the deposition of PW15 Insp. Shiv Kumar that there were marks of struggle and resistance, inasmuch as there is no material to support this piece of evidence as broken pieces of bangles, bichua and bindi etc. have not been linked to the deceased.
26. Further, the mediator of the marriage who as per PW4 arranged marriage of the deceased with Accused Vikas was not examined by the Prosecution. It was also pointed out that there are material contradictions in the deposition of PW1 and 4 and the alleged demand of dowry has not been proved on record by the Prosecution. In this regard, Ld. Defence Counsel also placed reliance on recent judgment of Hon'ble Delhi High Court titled as Sanjeev Vs State 164 (2009) DLT 459 (DHC) and judgment titled as Amar Singh Vs State of Rajasthan 2010 (4) RCR.
27. Lastly, it was also argued by Ld. Defence Counsel that admittedly statement of PW4 Sh. Ram Niwas was recorded after about 11 ½ months of date of incident though it is not disputed that father of the deceased had received her dead body and his statement to this effect was also recorded on 30.6.08. Accordingly, in these circumstances, the Prosecution has clearly tried to falsely implicate the Accused by creating false evidence. In this regard, reliance was placed on a judgment titled as Om Prakash & Anrs. Vs State of Punjab 1988 CCC 175 (HC).
28. In the light of the aforesaid arguments, it was vehemently contended by Ld. Defence Counsel that allegations against the Accused have not been proved beyond reasonable doubt and in these circumstances both the Accused persons should be acquitted.
29. The argument advanced by the Defence was strongly refuted by Ld. Public Prosecutor. At the outset, it was argued by Ld. APP that in view of the judgment of Ld. Apex Court in Trimukh Maroti Kirkan Vs State of Mahatastra (2006) 10 Supreme Court Cases 681 , since the offence in question was committed inside the privacy of the house of the Accused persons, the nature and amount of evidence to be led by the Prosecution to establish the charge cannot be of the same degree as is required in other cases.
30. I have gone through the judgment of Trimukh Maroti Kirkan Vs State of Mahatastra (Supra) I find that the ratio of the said judgment is squarely applicable to the facts and circumstances of the present case. Admittedly, the deceased died in her matrimonial home on 15.5.08. It is also not in dispute that she was married to Accused Vikas on 19.2.07. The death of Smt. Sudesh was thus undoubtedly within 07 years of her marriage with Accused Vikas. It is also not in dispute that there is no eye witness to the death of Sudesh. The case in hand is thus based on circumstantial evidence. On going through the record, I find that circumstances appearing in this case are so strong that they clearly point out towards the guilt of the Accused persons. However, before elaborating said circumstances, it would be necessary to refer to the relevant portion of the judgment of Trimukh Maroti Kirkan Vs State of Mahatastra (Supra) relied upon by the Prosecution with regard to onus of proof in such like cases. In the said judgment, Hon'ble Apex Court has laid down as under:
"Cases are frequently coming before the courts, where the husband or inlaws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the Prosecution to lead evidence. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it would be extremely difficult for the Prosecution to lead evidence to establish the guilt of the Accused if the strict principle of circumstantial evidence is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. The law does not enjoin a duty on the Prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the Prosecution is to lead such evidence which is is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision."
"Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the Prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the Prosecution and there is no duty at all on an Accused to offer any explanation."
31. Keeping in view the aforesaid observation of Hon'ble Apex Court, evidence on record in the present case must now be considered.
32. The brother of deceased PW1 Naresh though deposed in his examination in chief that his sister used to make complaints against the Accused persons that they were harassing her but she did not tell the reason of her harassment by the Accused persons, yet he admitted upon being crossexamination by the Prosecution that 'It is correct that after marriage, my sister used to make complaint against the Accused persons to me that her husband Vikas @ Kaushal and her mother in law Raj Rani @ Munni used to taunt her for bringing less dowry and used to utter that tu dahej mein kya lai hai and Accused also used to utter that double bed was broken one'. He further admitted that 'It is correct that my sister also used to ask me as to what type of goods I had given to her but I used to console my sister and used to tell her that I was facing scarcity of money and subsequently, after purchasing, I would give her goods'. He further deposed that 'It is also correct that my sister Sudesh used to tell me that Accused persons used to give entire clothes of the house to wash and used to say since, she had not brought goods so she had to do the work and due to this, my sister Sudesh used to remain depressed. It is also correct that on this, I made her understand to my sister and told her that I would give goods as soon as I would be having money in my hand'.
33. PW1 also admitted having made statement Ex. PW1/A to the concerned SDM and also admitted his signatures on the said statement at point A.
34. Unfortunately, mother of the deceased PW3 Smt. Kela completely turned hostile when she was brought into the witness box. However, it is noteworthy that she admitted that Tehsildar had recorded her statement on 15.5.08 Ex. PW3/A which bears her right thumb impression at point A. The concerned Tehsildar/SDM was examined by the Prosecution as PW14 who also deposed that he recorded the statement of Smt. Kela as Ex. PW3/A and Sh. Naresh as Ex. PW1/A and also deposed that statements were duly attested by him and also bears his signatures at point B.
35. The father of the deceased PW4 Sh. Ram Niwas testified that inlaws of her daughter were not happy with the dowry which was given in the marriage and that after sometime, her mother in law demanded money for purchasing plot. He could arrange Rs. 10,000/ only and when he went to give the same to the mother in law of her daughter, she abused him and also gave beatings to his daughter in his presence. The deposition of PW4, however, loses its credibility in view of the crossexamination wherein PW4 deposed that he had given Rs. 10,000/ to his son Naresh and his son told him to whom he had given money. PW4 also stated in his crossexamination that he had not told mediator of the marriage Fakira about the demand of Rs. 10,000/ by the Accused. Further, his deposition regarding demand of Rs. 50,000/ by the in law of deceased (deceased referred to as Poonam not disputed by the Defence) also does not stand established in view of his crossexamination wherein he had deposed that the came to know regarding the demand of Rs.,50,000/ by the Accused persons from his son and also that the said demand was for purchasing of house.
36. Thus, from the reading of the deposition of PW4 in totality, the allegations regarding dowry demand cannot be said to have been established on record from the testimony of PW4. Further, admittedly he gave his complaint Ex. PW4/A to the police after two months of demise of his daughter and his statement Ex. 30.6.08 was also recorded by the police after about 1 ½ months of the incident.
37. However, on going through the deposition of PW1 Naresh, I find that it is clearly borne out from his testimony that after marriage, deceased Sudesh used to make complaints against Accused persons stating that they used to taunt her and harass her for bringing insufficient dowry and regarding quality of the goods given to her at the time of marriage. She was also made to wash entire clothes of the house and used to say that since she had not brought goods so she had to do the work and due to this, she used to remain depressed.
38. At this juncture, the question arises as to whether mere taunting and harassment would fall within the meaning of expression 'cruelty or harassment in connection of demand of dowry' within the meaning of Section 304 B IPC. In this regard, reliance may be placed on a judgment of Hon'ble Supreme Court titled as Prem Kanwar Vs State of Rajasthan 2009 Cr. L. J. 1123 wherein the expression demand of dowry as used in Section 304 B IPC has been discussed at length by Hon'ble Apex Court. In this case, Hon'ble Supreme Court also observed after going through the deposition of Prosecution witnesses that "their evidence clearly shows greed of Accused who was persistently taunting and harassing deceased for not having brought sufficient dowry..." and relying on the aforesaid evidence, Hon'ble Supreme Court directed conviction of the Accused for offence punishable under Section 304 B IPC.
39. I may also refer to the another judgment of Hon'ble Supreme Court titled as Shanti and another Vs State of Haryana AIR 1991 Supreme Court 1226 where Hon'ble Supreme Court has held "the meaning of "cruelty" for the purposes of these sections has to be gathered from the language as found in Section 498A and as per that section "cruelty" means "any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life etc. or harassment to coerce her or any other person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
40. I also find no substance in the arguments of Ld. Defence Counsel that no reliance can be placed on the deposition of PW1 Naresh in view of admission in his crossexamination where he has admitted that his sister used to make complaints about her in laws to his mother and not to him. On careful perusal of the deposition of PW1 Naresh, I find that this admission of PW1 cannot be considered to be of much reliance since the witness did not specify as to what complaints were made by his sister to his mother. This becomes clear in the light of the next line in the crossexamination of PW1 wherein he has deposed 'I do not know about any complaint made by my sister to my mother'. It is relevant to mention that PW1 never stated that he was told about the harassment or tauting statements made by the Accused to the deceased by his mother. Thus, it is totally irrelevant whether deceased had made any such complaints about the harassment to her mother or not and the testimony of PW1 cannot be thrown out merely on this count.
41. Similarly, no reliance can be placed on his further crossexamination wherein he stated that his sister never made any complaint to him inasmuch as in his examination in chief he has clearly admitted that his sister used to make complaints against Accused persons stating that her husband Vikas @ Kaushal and mother in law used to taunt her for bringing less dowry and used to utter 'tu dahej mein kya lai hai' and Accused also used to utter that 'double bed was broken one'. It is also noteworthy that there is no crossexamination of the witness as regards his admission that his sister also used to ask 'as to what type of goods I had given to her but I used to console my sister and used to tell her that I was facing scarcity of money and subsequently, after purchasing, I would give her goods'. PW1 was also not crossexamined as regards his admission to the effect that his sister used to tell him that 'Accused persons used to give entire clothes of the house to wash and used to say since, she had not brought goods so she had to do the work and due to this, my sister Sudesh used to remain depress and that I made her understand and told her that I would give goods as soon as I would be having money in my hand'.
42. In view of the fact that aforesaid statement of PW1 remained unrebutted, I find that the allegations of harassment of the deceased at the hands of the Accused for or in connection with dowry demand stands duly established on record.
43. It was also submitted by Ld. APP during the course of his arguments that admittedly PW1 and PW2, brother and mother of the deceased respectively made their respective statements Ex. PW1/A and PW3/A to the concerned SDM. PW14 concerned SDM/Tehsildar had also proved the factum of recoding of their statement Ex. PW1/A and PW3/A on 15.5.08 on the date of the incident itself. It is not the plea of the Defence that SDM did not record the statement of PW1 and PW3 on 15.5.08. The SDM has also deposed after stepping into the witness box as PW14 that he correctly recorded the statement of Ex. PW1/A and PW3/A and duly attested the same which also bears his signatures. The statements Ex. PW1/A and PW3/A were put to the Accused persons at the time of recording of their statements under Section 313 CrPC to which the reply of both the Accused was 'I do not know'. Despite a lengthy cross examination, the deposition of PW14 remained unimpeached as regards recording of statement Ex. PW1/A and PW3/A by him.
44. It was contended by Ld. APP that in these circumstances, there is no reason to disbelieve that PW14 being the concerned SDM recorded the statement of PW1 and PW3 incorrectly. There is also nothing on record to show that he had any enmity with the Accused or had any other reason for making false statement before the court. Ld. APP placed reliance on the judgment of Hon'ble Apex Court titled as Bhagwan Dass Vs State (NCT) of Delhi 2011 Cr. L. J. 2903, Hon'ble Supreme Court in support of his said arguments urging that reliance may be placed upon the statements of the Accused recorded by the concerned SDM as there is no reason to disbelieve the SDM.
45. He further extended his arguments and submitted that Hon'ble Apex Court in Bhagwan Dass Vs State (NCT) of Delhi (supra) also stated that it is duty of the court to separate grain from the chaff and observed while relying on judgment titled as Himanshu @ Chintu Vs State (NCT of Delhi) (2011) 2 SCC 36 that the dependable part of the evidence of a hostile witness cane be relied on. The Hon'ble Apex Court considering the circumstances pointed out to the guilt of the Accused persons, rejected the statement of hostile witness and accepted her statement made to the police. Applying the same law, as laid won by Hon'ble Apex Court in Bhagwan Dass Vs State (NCT) of Delhi (supra) since admittedly PW1 Naresh and PW3 Smt. Kela made their statements Ex. PW1/A and PW3/A to the SDM (PW14), the fact that they turned hostile when they stepped into the witness box cannot be considered as a circumstance in favour of Accused. Rather, it is borne out from the deposition of PW1 that deceased was harassed by the Accused persons for bringing insufficient dowry. This fact is also reflected from their statements Ex. PW1/A and PW3/A which clearly establishes the greed of the Accused persons for not having brought sufficient dowry and the consequential harassment meted out by them to the deceased.
46. I have considered the aforesaid arguments. However, I find on going through the material on record that it is apparently borne out from the deposition of PW1 Naresh that the deceased was subjected to tauting and harassment at the hands of the Accused for or in connection with demand for dowry. I may also hasten to add at this juncture that it is also essential ingredient under Section 304 B IPC that it must be shown that deceased was subjected to cruelty or harassment by the Accused 'soon before her death'. There are catena of judgments where expression 'soon before her death' has been dismissed and explained. In Prem Kanwar Vs State of Rajasthan (supra) Hon'be Apex Court has laid down that no definite period has been indicated and the expression 'soon before' is not defined. A reference to expression "soon before" used in Section 114, Illustration (a) of the Evidence Act is relevant. The expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. It further laid down that 'Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. Hon'ble Apex Court further observed that the determination of the period which can come within the term 'soon before' is left to be determined by the courts, depending upon facts and circumstances of each case.
47. In the light of the aforesaid law, as laid down by Hon'ble Supreme Court, I find that this ingredient of Section 304 B IPC also stands fully established on record in the present case considering the short span of married life of the deceased ie. from the date of her marriage to Accused Vikas (19.2.07) till her date of death (15.5.08). From the deposition of PW1 Naresh and the statement Ex. PW1/A and PW3/A, it is apparent that within the aforesaid short span of her married life, the deceased was harassed and taunted by Accused persons for bringing insufficient dowry.
48. Besides the aforesaid ingredients, Section 304 B also enjoins upon the Prosecution to prove that................ "death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances..............." As aforesaid, it is the plea of the Defence that Smt. Sudesh committed suicide and was found hanging from ceiling fan after door of the room was broken up by DW1 Sh. Kamal Kumar. The Prosecution, on the other hand, has brought evidence on record to prove that death of Smt. Sudesh was not suicidal but was homicidal.
49. In support of the submissions, Ld. APP firstly pointed out towards the deposition of PW5 Dr. Dhyan Singh to whom deceased was taken on 15.5.08. He deposed that he had checked her and found that there was no breath and also noticed some reddish marks on her neck. Ld. APP further drew my attention towards MLC of the deceased which is Ex. PW8/A and as per MLC, the examining doctor had found strangulation marks over the neck more prominent on the life side on the body of the deceased. In the postmortem report Ex. PW16/A, eight injuries were found upon the person of the deceased as also elaborated and enumerated by PW16 Dr. Komal Singh who conducted postmortem upon the body of the deceased. It was also opined by PW16 that the cause of death of Accused was asphyxia due to the constricting force over the neck produced by the ligature homicidal hanging.
50. In the light of the aforesaid evidence, it was strongly urged by Ld. APP that Prosecution has been able to establish beyond reasonable doubt that death of the deceased Smt. Sudesh was homicidal and had occurred otherwise than in normal circumstances.
51. After considering the rival contentions made by the Defence as well as Prosecution, I find that it is noticeable that as per postmortem report Ex. PW16/A, the injuries sustained by the deceased on her knees, legs, back, elbow, ear and arms were antemortem and of same duration. This clearly indicates that deceased was subjected to physical abuse or beatings prior to her death. In the statement under Section 313 CrPC when the Accused persons were questioned regarding the said observations of examining doctor on the postmortem report Ex. PW16/A by way of question No. 15 and 16, their reply was 'I do not know'. PW16 Dr. Komal Singh was extensively cross examined by Ld. Defence Counsel despite which the deposition of PW16 remained unimpleached and consistent.
52. In the light of the foregoing evidence on record and the fact that the injuries upon the person of the deceased were not explained by the Accused persons in their statement under Section 313 CrPC, I find that Accused persons have failed to rebut the presumption of law raised against them by virtue of Section 113 B Evidence Act and they failed to discharge onus of deposing this incriminating circumstance appearing in the evidence against them. It may be reiterated even at the cost of repetition that Hon'ble Apex Court categorically laid down in Trimukh Maroti Kirkan Vs State of Mahatastra (supra) that considering the provision of Section 106 Evidence Act, there is corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. On going through the evidence on record and the response of the Accused persons in their statement under Section 313 CrPC, I find that Accused persons have failed to offer any explanation whatsoever as regards either injuries found upon the person of the deceased or with regard to her death. Thus, in the light of the aforesaid material on record, even if the plea of the Defence regarding suicidal death of the deceased is accepted, there is no escape from the fact that the deceased Smt. Sudesh died 'otherwise than under normal circumstances' within 07 years of her marriage with Accused Vikas. It has already been held that the deceased was subjected to harassment for or in connection with demand for dowry by the Accused soon before her death.
53. I may also hasten to add at this juncture that I find no force in the arguments of Defence that since injuries were not mentioned in the MLC and were mentioned in the postmortem report Ex. PW16/A, the dead body of the deceased was tampered with. It is noteworthy that no such suggestion was put to any of the Prosecution witnesses, nor any evidence been led to prove any kind of tampering with the body of the deceased Smt. Sudesh. It is also not their case that they lodged any complaint with any of the police authorities or even before the court as regards alleged tampering that dead body of the deceased. The body of Smt. Sudesh was preserved in the mortuary of DDU Hospital as per deposition of PW6 ASI Jora Singh and PW7 HC Vijay Kumar and no suggestion whatsoever was given to either of the two witnesses to the effect that there was even an occasion for anyone to tamper with the body of the deceased while it remained in mortuary of DDU Hospital prior to the postmortem examination. Moreover, PW16 Dr. Komal Singh has clearly pointed out that the injuries upon the body of the deceased were antemortem and there no explanation whatsoever was given by the Accused as to how the injuries could have been caused upon the person of deceased after her death.
54. It may also be relevant to refer to the judgment of Premwati Vs State of M. P. 1991 Crl. L. J. 268 where the expression "death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances" has been explained by Hon'ble M. P. High Court. It has been held that "A bare reading of Section indicates that its applicability would be attracted not only when the death is 'caused' by someone, but also when the death "occurs" unnaturally. If occurrence of death is preceded by cruelty or harassment by in laws for or in connection with dowry demand and if the connection between the two can be established mere occurrence of death is enought though death may not have been "caused" by the in laws. This interpretation has at least two internally built in clues in the language of Section 304 B. If at all applicablility would have been intended to be attracted on death being caused by some one else that the victim, then there was no necessity of using the word 'occurs' in context with death other than under normal circumstances. If at all the framers of the law would have intended that liability to be fixed on the person actually causing the death, there would have been no necessity of using the language "and such husband or relatives shall be deemed to have caused her death" at the end of subsection (1) of Section 304 B IPC. It suggest that the framers intend and contemplate the liability of occurrence of death being fastened on the in laws, though they did not in fact cause the death, by creating a fiction. Creating such circumstances as compel a person to chose the death, as the only way of getting out of misery would also attract the applicability of Section 304 B of the IPC.
55. On the basis of evidence on record, I find that Prosecution has been able to duly established that Accused being the husband and mother in law of the deceased subjected her to tauting and harassment for not having brought sufficient dowry soon before her death and that death of deceased Smt. Sudesh occurred on 15.5.08 otherwise than under normal circumstances. The Accused have failed to rebut the presumption as raised by virtue of Section 113 B Evidence Act. Rather after considering the material on record including the deposition of PW1 and the medical evidence coupled with the fact that Accused failed to give any explanation whatsoever as regards the injuries found upon the person of deceased or as regards her death within confines of their home, I find that both the Accused are guilty for offence punishable under Section 304B/34 IPC. Further, in view of the above discussion, I find that there is sufficient evidence on record to establish that Accused in furtherance of their common intention had also subjected the deceased to harassment with a view to coerce her and her relations who led to death of deceased Smt. Sudesh to meet their unlawful demand for dowry and thereby committed offence punishable under Section 498A/34 IPC.
56. Accordingly, considering the above discussion and the evidence on record, both the Accused persons are hereby convicted for offences punishable under Section 304B/498A/34 IPC. However, in so far as charge under Section 302 IPC is concerned, I am of the considered opinion that Prosecution has failed to prove its case for the said charge there is no evidence on record for convicting Accused for the offence punishable under Section 302/34 IPC.
57. With these observations, both the Accused persons are acquitted for offence punishable under Section 302/34 IPC and in the light of the above discussion both of them are convicted under Section 304B/498A/34 IPC. Let them be heard on the point of sentence.
Announced in the Open Court on January 10, 2012 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. Kaveri Baweja Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
Sessions Case No. : 14/10
Unique ID No. : 02401R1084062008
State versus 1) Vikas @ Kaushal
S/o Sh. Muni Ram
R/o H. No. : 271/1 Gali No. 7
Nehru Nagar, Anand Parbat
Delhi
2) Raj Rani @ Munni
W/o Muni Ram
R/o H. No. 271/1 Gali No. 7
Nehru Nagar, Anand Parbat
Delhi
Case arising out of:
FIR No. : 68/08
Police Station : Anand Parbat
Under Section : 498A/304B/302/34 IPC
Judgment pronounced on : 10.1.12
ORDER ON SENTENCE:
1. Vide judgment dated 10.1.12 both the above named accused have been convicted for offences punishable under Section 304B/498A/34 IPC.
2. I have heard the submissions on the point of sentence. It is submitted by Ld. Defence Counsel that both the accused are in custody in this case since 15.5.08. Accused Raj Rani is stated to be 64 years of age whereas accused Vikas @ Kaushal is stated to be about 28 years old. Ld. Defence Counsel submits that apart from the convicts, their family consists of the old aged and ailing husband of Accused Raj Rani and one son who is younger brother of accused Vikas @ Kaushal. It is stated that there is no record of any previous conviction of the accused and a prayer for lenient view is made in these circumstances.
3. On the other hand, Prosecution has prayed for life imprisonment for both the convicts. It is submitted by Ld. APP that it has been proved beyond reasonable doubt that deceased was subjected to cruelty and harassment at the hands of accused and her death within 07 years of marriage with convict Vikas @ Kaushal other than under normal circumstances is also established beyond reasonable doubt. It was submitted that keeping in view the seriousness of offences committed by the convicts, they be awarded maximum prescribed sentence.
4. I have considered the submissions made. Having regard to the facts and circumstances of the case and after considering the entire mitigating and aggravating circumstances and also sentence as prescribed under law, I am of the view the ends of justice would be met if both the convicts are sentenced to Rigorous Imprisonment for 07 years each for offence punishable under Section 304B/34 IPC. It is relevant to mention that in Shanti and another Vs State of Haryana AIR 1991 Supreme Court 1226, Hon'ble Supreme Court has categorically observed that provisions of Section 304B and 498A are not mutually exclusive and these provisions deal with two distinct offences. However, where Accused is convicted for both the aforesaid sections, no separate sentence need be awarded for offence punishable under Section 498A IPC in view of the substantive sentence been awarded for offence punishable under Section 304 B IPC.
5. Keeping in view the aforesaid, both the above named convicts are hereby sentenced to Rigorous Imprisonment for 07 years each for offence punishable under Section 304B/34 IPC and no separate sentence is being awarded for offence punishable under Section 498A IPC. They shall also be entitled to benefit of Section 428 CrPC. Ordered accordingly. Copies be given free of cost to the convict. File be consigned to Record Room.
Announced in the Open Court on 13 January, 2012 (Kaveri Baweja) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.